copy is legal evidence, while the original is in existence,
except that given to the soldier. (1) For the same
reason, it should seem, if the soldier, who has been ex-
amined before the magistrates, be abroad, or dead, or
has quitted the army at the time when the appeal is
tried, the original affidavit or an attested copy would [0]
not be admissible in evidence. "One inconvenience,
intended to be remedied by the act, was that of taking a
soldier out of the quarters, for the purpose of his being
examined respecting his settlement; and in order to
guard against this inconvenience, the act directs the
magistrates, who take the soldier's examination, to give
him a copy of it, to be delivered to the commanding of
ficer; that copy is lodged in the hands of the command-
ing officer, that it may be afterwards produced when re-
quired. But if the soldier go abroad, the same incon-
venience is not likely to happen, and the act of parlia
ment does not apply to such a case." (2)

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Depozitious

in ecclesiastical court..

Depositions taken in an ecclesiastical court, in a cause within its jurisdiction, seem to be admissible in evidence o upon the same footing as depositions in the court of Chancery, the parties being the same, and having had an opportunity of cross-examining the deponents.-Chief Baron Gilbert lays down the rule thus :(3) "Depositions taken in the spiritual court in a cause relating to lands cannot be read, because they are no oaths at all, inasmuch as the spiritual courts have no authority to take depositions relating to lands: but it seems they may be read, when taken in a cause in which they have authority, as far as relates to that cause, inasmuch as these are lawful baths, and a man may be indicted for the violation of them, though they be not oaths in a court of record." It does not appear, in any of the cases above mention

(1) R. v Clayton-le-Moors, 5 T. R. 706.

2) By Lawrence J. in R. v Clayton

le-Moors, 5 T. R. 708.
(3) Gilb. Ev. 60.

[305]

*287

ed, to have been thought essential to the admissibility of depositions, that they should be made in courts of record; but the material consideration was, whether they were taken judicially, and whether the other party, against whom they were offered in evidence, had any opportunity of cross-examining the deponent. And upon this principle, Lord Holt, in the case of Breedon v. Gill,(1) was of opinion, that depositions before commissioners of excise, (who by statute 12 C. 2. c. 24. s. 45. have

power to administer oaths on enquiring into forfeitures,) taken in the presence of the other party, and signed by the witness, would be admissible on an appeal from the sentence of the commissioners, in case the witness should be dead at the time of hearing the appeal. There are some authorities, which hold, that depositions of witnesses in an ecclesiastical court are not to be admitted in courts of common law; (2) *and one book of authority lays it down as a general rule, that depositions, taken in a court not of record, shall not be allowed in evidence elsewhere. (3) However, the better opinion seems to be, that such depositions are admissible in evidence, under the limitations above stated.

Judgments in a court baron, county court, or hundred. Judgments of inferior courts, court, and the judgments of any other inferior court recognized by the law of the land, (4) are evidence between the same parties, upon the same points in issue, on matters within their jurisdiction. Thus, in an action of debt on a judgment recovered in an inferior court, the judgment will be evidence of the debt, but not conclusive; and the defendant may shew that the cause of action was not within the jurisdiction of the court below.(5)

(1) 1 Ld. Ray. 219. 222.

(2) Earl of Sarum v Sir B. Spencer, 2 Roll. Abr. 679. pl. 5. Lit. Rep. 167. March Rep. 120.

(3) Bull. N. P. 242.

See ante, p.

241, 242.

(4) Com. Dig. "Evidence," C. I. (5) Herbert v Cook, reported in note (a) Willes Rep. 36. See Moses v Macferlan, ante, p. 244.

An award, regularly made by an arbitrator, to whom Award. matters in difference are referred, is conclusive, in an

reference, upon all
What has been be-

action at law, on the parties to the
matters within the submission.(a)
fore said on the subject of judgments by a court of con-
current jurisdiction, may be said also of awards, that
they are, as a plea, a bar, or, as evidence, conclusive be-
tween the same parties, upon the same matter directly in
question.(1) Thus, in an action of ejectment, where
the lessor of the plaintiff and the defendant had before
referred to an arbitrator their respective claims to the
property in question, the Court of King's Bench held,
that the party had by his agreement concluded himself
from disputing the lessor's title.(2) It has been before
observed, that an award is not a bar to any cause of ac-
tion, which the one party had against the other at the
time of the reference, if it appear that the subject-mat-
ter of the action was not enquired into before the ar-
bitrator.(b)(3)

(1) See ante, p. 242.; and Campbell v Twemlow, ante, p. 73; and R. v Cotton, ante, p. 193.

(2) Doe dem. Morris v Rosser, 3

East, 15.

(3) Ravee v Farmer, 4 T. R. 11. ante, p. 254.

13061

* 288

(a) The court refused to interfere with the award of a barrister at law, to whom the cause had been referred, both as to the law and the fact, although the point of law decided by him was at least doubtful Campbell v Tremlow, I Price's Rep. 81. Rosevelt v Thurman, 1 John. Ch. Rep. 220. An award by arbitrators is conclusive in equity unless corruption, partiality, or gross misconduct on the part of the arbitrators can be shown, or unless they were mistaken in a plain point of law, which materially affected the interest of the parties. Alwyn v Perkins & Kelly, 3 Desau's Eq. Rep. 297. Herrick v Blair et al. 1 Johns. Ch. Rep. 361. Underhill v Van Courtlandt, 2 Johns. Ch. Rep. 361. Todd v Binlom, ib. 551. Shepperd v Merrill, 2 Johns. Ch. Rep. 276.

(6) The rule is now settled in the state of New-York, that an award, although the submission were made a rule of court, cannot be impeached at common laro, either in a collateral action or an action on the award, for a mistake either of law or fact, and that it can only be avoided, except in chancery, for corruption or partiality in the arbitrators. Shepherd v Watrous, 3 Caines' Rep. 166. Newland v Douglas, 2 Johns. Rep. 62. Barlon v Todd, 3 Johns. Rep. 367. Cranston v Ex'rs of Kenny, 9 Johns. Rep. 212. Jackson d. Van Alen ▾ Ambler, 14 Johns,

Certificates.

The certificate of a vice-consul has been compared to a foreign judgment. But the vice-consul is not, properly speaking a judicial officer; nor is his certificate to be admitted as evidence of the fact there stated. In the case of Waldron v. Coombe, (1)the Court of Common Pleas determined, that the certificate of a British viceconsul in a foreign country could not be received here as evidence of the amount of a sale, although by the law of that country he was constituted general agent for all absent owners of goods, and was authorized and compelled to make the sale in question.(a)

CHAP. V.

Of the Proof of Records, and Judicial Proceedings.

THE admissibility of judicial proceedings, with reference to the subject-matter, having been treated of in (1) 3 Taunt. 162. Roberts v Eddington, 4 Esp. N. P. C. 88.

Rep. 96. The law appears to be the same in Connecticut. Bulkley v Stewart, 1 Day 130. Lewis v Wildman Id 153. But it seems, that in some of the states, an award may be avoided at common law, for a palpable or gross mistake. Merris and others v Ross, 2 Hen. & Mun. 408. Cleary v Coor & Hanks, 1 Hayw. 225. Sumpter v Murrell, 2 Bay 250. On the effect of awards, see J. Storey's opinión in the case of Klein v Catara, 2 Gallison Rep. 81.

It may not be improper, in this place, to take notice of a mistake which some American Editors have fallen into, respecting the law of the state of New-York in relation to awards. The subject of the awards of Arbitrators, and that of the report of referees, have been confounded together: the former of which as before stated, is conclusive; the arbitrators being judges of the parties own choosing, they are bound to abide by their decision; but a reference is a proceeding directed by the court itself in the progress of a cause, by virtue of a particular statute, and the report of the referees, like the verdict of a jury, the place of which it is intended to supply, is subject to the revision and control of the court, and may be set aside either for irregularity or on the merits. A cause referred, but not according to the provisions of the statute, is regarded in the same light as a submission to arbitration. Miller v Vaughan, 1 Johns. Rep. 315. Stevenson◄ Beecker, Id. 492.

(a) Vide post, 319. (m)

the preceding chapters, it remains to consider how their contents are to be regularly proved, so as to render them. producible in evidence.

Records are, for security, preserved in public repos itories, and, as they cannot be removed from place to place to serve a private purpose, examined copies are admitted as the best producible evidence.(1)

Acts of Par liament.

The printed statute-books have been at all times admitted as evidence of public acts of parliament. And by the statute 41 G. 3. c. 90. s. 9., made for the better and more effectual proof of the statute law, it is enacted, that copies of the statutes of Great Britain and Ireland prior to the Union, printed by the printer duly (307) authorized, shall be received as conclusive evidence of the several statutes in the courts of either kingdom.

A different rule has been adopted with respect to private acts of parliament. (a) The regular proof of (1) Leighton v Leighton, 1 Str. 210.

* 289

(a) Vide Proprietors of Kennebeck Purchase v Call, 1 Mass. Rep. 483. In Duncan v Duboys. 3 Johns. Cas. 125, the general rule is admitted, but the court refused to grant a new trial on the ground that the printed book was admitted in evidence, it being shown that the printed book was correct, by producing an exemplification of the private act. The court say, "Perhaps the reason why the printed statute book is excluded, that the statutes are not considered as already lodged in the minds of the people, does not apply to the case of a private statute given in evidence by the opposite party, against the party for whose benefit the act was passed; for it cannot then be intended as not lodged in his mind, and so cannot operate as a surprise upon him. This exception applies the more strongly in the present case, because the private act admitted on the trial of this cause had been published in a volume, certified to have been collated and compared with the original rolls." The legislature of New-York has since declared, that private acts printed by the Printer of the state may be read in evidence in all cases from the printed statute book. Sess. 36. c. 26. s. 32. 1 R. L. 527. And in Pennsylvania the same rule is established by a decision of the Supreme Court, Biddis v James, & Binney 321. The Supreme Court of the United States bas intimated the same opinion. 4 Cranch 338. The act of Congress of May 26, 1790, s. 1. 1 L. U. S. 115. has provided that the acts of the legislatures of the several states should be authenticated by having the seal of their respective states affixed thereto. The act of Congress does not require the attestation of any